# Shareef v. State of U.P

- **Citation:** (2019) 3 ILRA 596
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-21
- **Case number:** Jail Appeal No. 4305 of 2014
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shareef-v-state-of-u-p-44862
- **Pages:** 10

## Headnote

A. Criminal Law -Indian Penal Code,
Sections 363 - prosecutrix being 18 years of
age, was a major and had gone with
preparation by taking cash of Rs. 1 lac and
golden
and
silver
jewelry
with
her.
Ingredients of enticing or kidnapping of any
person
from
India
or
from
lawful
guardianship not made out. Essential
ingredients of kidnapping from lawful
guardianship, provided under Section 361
of I.P.C., could not be proved - The
conviction and sentence awarded by trial
Court for offence punishable under Section
363 of I.P.C., was not substantiated with
evidence on record, for which this appeal is
to be partly allowed. (Para 16)

B. Criminal Law -Indian Penal Code,1860 -
Section 366 of I.P.C - offence punishable
under Section 366 of I.P.C. was not proved
beyond reasonable doubt - it was a
consensual fleeing by prosecutrix, who was
major and had left her home with
preparation by taking Rs. 1 lac in cash and
golden
and
silver
ornaments
-
the
conviction and sentence awarded for this
offence punishable under Section 366 of
I.P.C., was not substantiated by evidence
on record, for which this appeal merits its
allowance. (Para 17)

C. Criminal Law -Indian Penal Code,1860 -
Section 376 I.P.C. - Offence of rape -
Prosecutrix, in her statement recorded under
Section 164 of Cr.P.C., has categorically said
that she was forcibly subjected to rape. She
has proved her testimony recorded under
Section 164 of Cr.P.C., - In her crossexamination,
there
is
no
material
contradiction,
exaggeration
or
embellishment on this part of her
testimony - she has reiterated that the
accused was subjecting her to rape -
there is no material variance - the
offence punishable under Section 376 of
I.P.C. was proved beyond doubt and for
3 All. Shareef Vs. State of U.P.
597
which there was conviction by trial
Judge. (Para 20,25)

D. Indian Penal Code,1860 - Section 428
I.P.C
-
Convict-appellant
is
being
convicted for offence punishable under
Section 376 I.P.C. with eight years
rigorous imprisonment and fine of Rs.
10,000/-, and in default two years
additional rigorous imprisonment for
offence punishable under Section 376
I.P.C. - His previous incarceration in this
very case crime number shall be counted
towards this sentence under Section 428
of I.P.C. - acquitted of the charge leveled
for offence punishable under Sections
363 and 366 of I.P.C. (Para 31)

Jail appeal partly allowed (E-7)

List of cases cited:-

## Text

596 INDIAN LAW REPORTS ALLAHABAD SERIES

52. Keeping in view provisions of
Section 437-A Cr.P.C., accused-appellant
is directed to furnish a personal bond and
two sureties before Trial Court to its
satisfaction, which shall be effective for a
period of six months, along with an
undertaking that in event of filing of
Special Leave Petition against instant
judgment or for grant of leave, appellant
on receipt of notice thereof shall appear
before Hon'ble Supreme Court.

53. Lower Court record along with a
copy of this judgment be sent immediately to
District Court concerned for compliance and
further necessary action.

54. Before parting, we provide that
Sri Prem Shanker Tiwari, Advocate, who
has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 11,500/-. State
Government
is
directed
to
ensure
payment
of
aforesaid
fee
through
Additional Legal Remembrancer, posted
in the office of Advocate General at
Allahabad, without any delay and, in any
case, within one month from the date of
receipt of copy of this judgment.
----------

(2019)11ILR A596

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Jail Appeal No. 4305 of 2014

Shareef ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Awadhesh Kumar Mishra,
Sri Madhvendra Singh.

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law -Indian Penal Code,
Sections 363 - prosecutrix being 18 years of
age, was a major and had gone with
preparation by taking cash of Rs. 1 lac and
golden
and
silver
jewelry
with
her.
Ingredients of enticing or kidnapping of any
person
from
India
or
from
lawful
guardianship not made out. Essential
ingredients of kidnapping from lawful
guardianship, provided under Section 361
of I.P.C., could not be proved - The
conviction and sentence awarded by trial
Court for offence punishable under Section
363 of I.P.C., was not substantiated with
evidence on record, for which this appeal is
to be partly allowed. (Para 16)

B. Criminal Law -Indian Penal Code,1860 -
Section 366 of I.P.C - offence punishable
under Section 366 of I.P.C. was not proved
beyond reasonable doubt - it was a
consensual fleeing by prosecutrix, who was
major and had left her home with
preparation by taking Rs. 1 lac in cash and
golden
and
silver
ornaments
-
the
conviction and sentence awarded for this
offence punishable under Section 366 of
I.P.C., was not substantiated by evidence
on record, for which this appeal merits its
allowance. (Para 17)

C. Criminal Law -Indian Penal Code,1860 -
Section 376 I.P.C. - Offence of rape -
Prosecutrix, in her statement recorded under
Section 164 of Cr.P.C., has categorically said
that she was forcibly subjected to rape. She
has proved her testimony recorded under
Section 164 of Cr.P.C., - In her crossexamination,
there
is
no
material
contradiction,
exaggeration
or
embellishment on this part of her
testimony - she has reiterated that the
accused was subjecting her to rape -
there is no material variance - the
offence punishable under Section 376 of
I.P.C. was proved beyond doubt and for
3 All. Shareef Vs. State of U.P.
597
which there was conviction by trial
Judge. (Para 20,25)

D. Indian Penal Code,1860 - Section 428
I.P.C
-
Convict-appellant
is
being
convicted for offence punishable under
Section 376 I.P.C. with eight years
rigorous imprisonment and fine of Rs.
10,000/-, and in default two years
additional rigorous imprisonment for
offence punishable under Section 376
I.P.C. - His previous incarceration in this
very case crime number shall be counted
towards this sentence under Section 428
of I.P.C. - acquitted of the charge leveled
for offence punishable under Sections
363 and 366 of I.P.C. (Para 31)

Jail appeal partly allowed (E-7)

List of cases cited:-

1. Narbada Prasad Vs Chhagan Lal & ors. AIR
(1969) SC 393

2. Kali Ram Vs St. Of H.P. AIR (1973) SC 2773

3. Partap Vs The St. of U.P. AIR (1976) SC
966

4. Shankarlal Gyarasilal Dixit Vs St. Of Mah.
AIR (1981) SC 765

5. Thakorlal D. Vadgama Vs The St. Of Guj.
AIR (1973) SC 2313

6. St. of Har. Vs Raja Ram AIR (1973) SC 819

7. Gopal Singh Vs St. Of Uttarakhand (2013) 3
SCC (Cri) 608

8. St. of U.P. vs. Babu Lal, AIR (2008) SC 582

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This appeal under Section 374(2)
read with Section 383 of Code of
Criminal Procedure (hereinafter referred
to as 'Cr.P.C.') has been filed against the
judgment of conviction and sentence
made therein by Court of Additional
Sessions judge, Court No. 5, Ghaziabad,
in Sessions Trial No. 572 of 2013, arising
out of Case Crime No. 1469 of 2011,
under Sections 363, 366 and 376 of
I.P.C., Police Station Loni, District
Ghaziabad,
wherein
convict-appellant
Sharif son of Babu has been convicted for
offence punishable under Section 363,
366 and 376 I.P.C. and thereby he has
been sentenced with three years rigorous
imprisonment and fine of Rs. 3,000/- and
in default of making payment of fine,
rigorous imprisonment of six months
under Section 363 of I.P.C., five years
rigorous imprisonment with fine of Rs.
5,000/-,
and
in default
one
years
additional rigorous imprisonment for
offence punishable under Section 366 of
I.P.C., ten years rigorous imprisonment
and fine of Rs. 10,000/-, and in default
two
years
additional
rigorous
imprisonment under Section 376 I.P.C.,
with a direction for concurrent running of
sentences and adjustment of previous
imprisonment, if any, in this very case
crime number, as per Section 428 of
Cr.P.C.

2. Memo of appeal contends that
trial Court failed to appreciate facts and
law placed upon record. There was no
proof of rape with victim nor it was
medically corroborated. First Information
Report was delayed and no reason for this
delay, was given. Prosecutrix was major,
thereby,
capable
to
understand
her
wellness. It was a fleeing with someone
else but convict-appellant has been falsely
implicated in this case crime number,
having
no
independent
eye-witness
account. He was having no concern with
prosecutrix. No circumstantial evidence
was against him nor it was medically
corroborated for offence of rape. Even
598 INDIAN LAW REPORTS ALLAHABAD SERIES
then,
judgment
of
conviction
was
awarded by trial Court, which was based
on
surmises
and
conjunctures.
Prosecution failed to prove charge beyond
reasonable doubt and convict-appellant
was entitled for benefit of doubt.
Prosecutrix is mother of one healthy child
and she never said that convict-appellant
is father of that child. Hence, this appeal.

3. From the very perusal of record of
lower court, it is apparent that First
Information Report, Ex.Ka-1, was got
lodged at Police Station Loni, DistrictGhaziabad on 28.12.2011 at 09:15 hrs., for
an occurrence of 11.12.2011, upon the report
of Jameel, son of Mateen, against Sharif,
Sheru and Sonu son of Babu and Noor
Hasan son of Ismail, all resident of Badarpur,
Loni, Ghaziabad, for an offence punishable
under Sections 363, 366 I.P.C., with
contention that Jameel's daughter prosecutrix
"R", aged about 15 years, was enticed and
taken away on 11.11.2011 by Sharif son of
Babu, aged about 45 years with 5 kids.
Sharif was residing in a rented portion of a
house of Nanhe, situated at Yamuna city. He
was used to visit applicant's house. On above
date of occurrence, entire family members,
except prosecutrix "R", were out of home,
for attending a marriage ceremony and
prosecutrix "R" was all alone at home.
Prosecutrix
"R"
had
taken
cash
of
Rs.1,00,000/- and ornaments, with her. She
was vehemently searched. But of no trace.
This fleeing was assisted by his brothers
Sheru, Shabu both son of Babu and his
brother-in-law Noor Hasan son of Ismail,
resident of Badarpur, Loni, Ghaziabad.
Sheru and others are aware of their trace.
Hence, this report for legal action.

4. On 05.01.2012, while S.I. Rajpal
Singh Tomar along with his police team,
after moving from police station vide
G.D. Entry No. 17 by 08:35 p.m., with
regard to investigation and search of
prosecutrix of Case Crime No. 1469 of
2011 under Sections 363, 366 I.P.C., was
busy in area of his police station, he met
with police team led by other SubInspector
and
an
information
was
received that prosecutrix along with
accused, is present at Loni triangle. They
were in get up of someone else. Police
team rushed on spot, on the way,
informant Jameel, father of prosecutrix,
met together. They went on spot. Jameel
identified his daughter. The person
present thereat could manged to run from
spot. Prosecutrix "R" was apprehended at
10:00 A.M. Recovery memo, Ex. Ka-2,
was prepared on spot. Her statement,
under Section 164 of Cr.P.C. was got
recorded. She was medically examined
and her Medico Legal Report was got
prepared. Her age determination test was
got conducted, wherein she was held to be
of 18 years. Spot map, Ex. Ka-4, was
prepared.
Investigation
resulted
submission of charge-sheet Ex.Ka-6, for
offence punishable under Sections 363,
366 and 376 I.P.C. against Sharif, Sheru,
Sabu, Sanu and Noor Hasan. Magistrate
took cognizance over it on 31.3.2013. As
offences punishable under Sections 363,
366 and 376 I.P.C. were exclusively
triable by Court of Session, hence, file
was committed to Court of Session by
Court of Chief Judicial Magistrate,
Ghaziabad, where Session Judge, vide
order dated 28.3.2013, registered sessions
trial number and then after vide order
dated 28.3.2013, file was made over to
A.S.J. Ist, Ghaziabad, wherein, learned
counsel for the State and learned counsel
for the defence, were heard and vide order
dated 2.4.2013, charge for offences
punishable under Sections 363, 366 and
376 I.P.C. were framed against Sharif
3 All. Shareef Vs. State of U.P.
599
whereas charge for offences punishable
under Sections 363 and 366 were framed
against Sheru, Sabu, Sonu and Noor
Hasan. The same is being written in its
English translation by Court itself, the
vernacular part is not being reproduced.

I,
Shankar
Lal,
Additional
District and Session Judge, Ghaziabad,
Court No. 5, do hereby, charge you,
Sharif:

"(1) That on 11.11.2011 at any
time at Jamuna City, Badarpur, within
area of Police Station Loni, District
Ghaziabad along with your other friends
enticed minor girl of Jameel, prosecutrix,
aged about 15 years and thereby
kidnapped from her lawful guardianship
of her legal guardians. Thereby you
committed
offence
of
kidnapping
punishable under Section 363 of I.P.C.
within the cognizance of above Court.

(2) That on above date, time
and place, you did kidnapping of minor
daughter of informant Jameel, from his
legal guardianship with intent that she
will be compelled to marry or likely to
marry or likely that she will be forced or
seduced to illicit intercourse, thereby
committed
offence
punishable
under
Section
366
of
I.P.C.
within
the
cognizance of above Court.

(3) That on above date, time
and place, you enticed and thereby
kidnapped minor prosecutrix daughter of
informant and took her somewhere else
where you committed rape against her
wishes.
Thereby,
committed
offence
punishable under Section 376 of I.P.C.
within the cognizance of this Court."

----------Sd-----------

I,
Shankar
Lal,
Additional
District and Session Judge, Ghaziabad,
Court No. 5, do hereby, charge you,
Sheru, Sabu, Sonu and Noor Hasan:

"(1) That on 11.11.2011 at any
time at Jamuna City, Badarpur, within
area of Police Station Loni, District
Ghaziabad along with your other friends
enticed minor girl of Jameel, prosecutrix,
aged about 15 years and thereby
kidnapped from her lawful guardianship
of her legal guardians. Thereby you
committed
offence
of
kidnapping
punishable under Section 363 of I.P.C.
within the cognizance of above Court.

(2) That on above date, time
and place, you did kidnapping of minor
daughter of informant Jameel, from his
legal guardianship with intent that she
will be compelled to marry or likely to
marry or likely that she will be forced or
seduced to illicit intercourse, thereby
committed
offence
punishable
under
Section
366
of
I.P.C.
within
the
cognizance of above Court."

----------Sd-----------

5. Charges were read over to
accused persons. Who pleaded not guilty
and
claimed
for
trial.
Prosecution
examined informant PW-1 Jameel, PW-2
and prosecutrix 'R', daughter of Jameel,
PW-3, Dr. Sumata Talib, PW-4 Sarfaraj,
PW-5 Smt. Vakeela, PW-6 Investigating
Officer S.I. Rajpal Singh Tomar, PW-7
Constable Rahul Kumar.

6.

With
a
view
to
obtain
explanation, if any, and version of
accused persons, their statements were
got recorded under Section 313 of Cr.P.C.
wherein each of accused persons gave one
and same answer to each of the questions
put to them under Section 313 of Cr.P.C.
In
answer
of
each
questions
that
testimony of PW-2, PW-6 are wrong.
Regarding testimony of PW-3 Dr. Sumata
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Talib about Ex. Ka-3 and Medico Legal
Examination made on prosecutrix as well
as
testimony
of
PW-6,
regarding
preparation of recovery memo Ex. Ka-2,
thereby determination of age by medico
legal age determination wherein age of
prosecutrix was held to be of 18 years,
has not been submitted. Each of accused
persons replied that they are innocent and
they have been falsely implicated in this
very case crime number.

7. No evidence in defence was there.

8. After hearing learned Additional
District Government Counsel (Cri) and
learned counsel for the defence, the
impugned judgment of conviction and
sentence was made therein, regarding
convict Sharif for offence punishable
under Section 363, 366 and 376 and
judgment of acquittal of those charges,
leveled against Sheru, Sabu, Sonu and
Noor Hasan, was passed.

9. No state appeal or appeal by
prosecutrix
or
informant,
against
judgment of acquittal, passed for accused
Sheru, Sabu, Sonu and Noor Hasan, is
there on record. This appeal is limited
against judgment of conviction and
sentence passed therein for convictappellant Sharif, who has been convicted
and sentenced as above.

10. Heard Sri Madhvendra Singh,
Advocate, holding brief of Sri Awadhesh
Kumar Mishra, learned counsel for the
appellant as well as Sri Munne Lal,
learned AGA for the State.

11. Learned counsel for the
appellant argued that charge was made for
offence of kidnapping of a minor girl of
informant, whereas she has been held to
be of 18 years of age in medical age
determination. Hence, neither she was
minor nor of unsound mind. Being above
18 years, offence punishable under
Section 363 I.P.C. is not made out. Same
was the situation for offence punishable
under Section 366 I.P.C. Because in
Ex.Ka-1, itself it was mentioned that
prosecutrix had eloped herself with
preparation by taking Rs. 1 lac in cash
and golden ornaments. She was major and
held to be of 18 years in medical age
determination, hence, she went upon her
own volition, after making preparation by
taking Rs. 1 lac and golden ornaments,
while
fleeing.
Hence,
it
was
not
kidnapping or abduction, with above
essential ingredients of having intention
that she will be compelled to marry or
likely to marry or likely that she will be
forced or seduced to illicit intercourse.
Co-accused persons Sheru, Sabu, Sonu
and Noor Hasan, against whom, same set
of evidence was there, have been
acquitted of the offence of kidnapping
and abduction with a view that she will be
compelled to marry or likely to marry or
likely that she will be forced or seduced
to illicit intercourse. No appeal against
above judgment of acquittal is there.
Hence, there was no proof beyond
reasonable doubt for those offences
against
convict-appellant
Sharif
too.
Regarding offence of rape, there is
material contradiction, exaggeration and
embellishment, with no corroboration
from medical evidence or independent
eye-witness account. Even then, above
conviction
with
above
deterrent
punishment, is there.

12. There remained single testimony
of prosecutrix, that too, with major
contradiction. Convict-appellant has been
sentenced
with
ten
years
rigorous
3 All. Shareef Vs. State of U.P.
601
imprisonment, which is the highest one
for offence punishable under Section 376
I.P.C. and he is languishing in jail since
11.11.2011. Punishment awarded is of
maximum ten years, out of which seven
years has been served by convictappellant.
Whereas,
punishment
for
offence of rape, provided under Section
376 of I.P.C., was imprisonment of either
description of a term, which shall not be
less than seven years, which may be for
life or for a term which may extend to ten
years and shall also be liable to fine and
the maximum sentence of ten years with
fine of Rs. 10,000/-, has been imposed
whereas minimum sentence was seven
years without fine but the Presiding Judge
has sentenced with ten years rigorous
imprisonment and fine of Rs. 10,000/-,
which shows that second portion of
punishment has been exercised, in which
maximum sentence of ten years with fine
of Rs. 10,000/-, has been awarded. Hence,
this Court of appeal to give a sentence for
period already undergone.

13. Sri Munne Lal, learned AGA
argued that trial judge has rightly
appreciated facts and law, placed before it
and has convicted appellant Sharif for
offence punishable under Section 363,
366 and 376 I.P.C., wherein sentence of
three years rigorous imprisonment with
fine of Rs. 3,000/-, and in default six
months additional imprisonment under
Section 363 I.P.C., five years rigorous
imprisonment and with fine of Rs. 5,000/-
, and in default one year additional
imprisonment under Section 366 I.P.C.
and ten years rigorous imprisonment and
with fine of Rs. 10,000/-, and in default
one year additional imprisonment under
Section 376 I.P.C. has been awarded,
which
was
adequate
sentence
in
perspective of fact of circumstances, in
which
accused
being
relative
of
prosecutrix and of being 45 years of age,
enticed prosecutrix, was minor and
committed rape with her. He was having
siblings,
even
then
committed
this
offence. Hence, even on the point of
sentence, appeal be dismissed.

14. Apex Court in Narbada Prasad
vs Chhagan Lal And Ors AIR 1969 SC
393, has held that in an appeal the burden
is on the appellant to prove how the
judgment under appeal is wrong? He must
show where the assessment has gone
wrong? In criminal trial Apex Court in
Kali Ram vs State Of Himachal
Pradesh AIR 1973 SC 2773, has
propounded that the onus is upon the
prosecution
to
prove
the
different
ingredients of the offence and unless it
discharges that onus, the prosecution
cannot succeed. In Partap vs The State of
U.P. AIR 1976 SC 966, Apex Court has
held that prosecution has to prove case
beyond all reasonable doubt whereas
accused is to prove only establishing
preponderance of probabilities. Though
Apex Court in Shankarlal Gyarasilal
Dixit vs State Of Maharashtra AIR
1981 SC 765 has propounded that
feasibility of defence does not shape
prosecution case and suspicion how so
strong cannot take place of proof.

15. Section 363 I.P.C. provides:-
"whoever kidnaps any person from India
or from lawful guardianship, shall be
punished with imprisonment of either
description for a term which may extend
to seven years, and shall also be liable to
fine."
Kidnapping
from
lawful
guardianship has been defined under
Section 361 I.P.C. that "whoever takes or
entices any minor under sixteen years of
age, if a male, or under eighteen years of
602 INDIAN LAW REPORTS ALLAHABAD SERIES
age if a female, or any person of unsound
mind, out of the keeping of the lawful
guardian of such minor or person of
unsound mind, without the consent of
such guardian, is said to kidnap such
minor
or
person
from
lawful
guardianship, i.e. for punishment of
offence under Section 363 I.P.C." Section
361 I.P.C. and its ingredients are to be
proved, which requires taking or enticing
of a minor under 16 if male and under 18
if female, from lawful guardianship or a
person of unsound mind of any age,
without consent of that guardian. Apex
Court in Thakorlal D. Vadgama vs The
State Of Gujarat AIR 1973 SC 2313,
has propounded the words "whoever takes
or entices any minor" under Section 361
I.P.C. and observed as to what actually
means. According to the Supreme Court,
the word "takes", does not necessarily
connote taking by force and does not
confined to use of force, actual or
constructive. These words merely mean
"to cause to woke", "to support" or "to get
into possession". The gravamen of this
offence under Section 361 I.P.C. lies in
the taking or enticing of a minor,
specified in this section out of the keeping
of the lawful guardianship without the
consent of such guardian.

16. On a plain reading of this Section,
the consent of the minor, who is taken or
enticed, is wholly immaterial, it is only the
guardian's consent which takes the case
within its purview. Nor is it necessary that
the taking or enticing must be shown to
have been by means of force or fraud.
Persuasion by the accused person, which
creates willingness on the part of minor to
be taken out of the keeping of the lawful
guardianship would be sufficient to attract
this Section 361 I.P.C., as has been held by
Apex Court in State of Haryana Vs. Raja
Ram AIR 1973 SC 819. In the present
case, Ex. Ka-1, First Information Report
was got lodged by PW-1 Jameel, who, in
his cross-examination, has said prosecutrix
to be of 15 to 16 years and she was missing
since evening of 11.11.2011. This occurred,
while this informant and other family
members, were not at their house and
prosecutrix eloped with cash of Rs. 1 lac
and ornaments of gold and silver and when
being searched, it was apprised by Sarfaraz
and his wife that Sharif had come and had
taken prosecutrix with him. Meaning
thereby, Ex.Ka-1, was got reported on the
basis of information given by Sarfaraz and
his wife and this witness is not eye-witness
account of same. He, in his crossexamination, has specifically said that he is
not aware as to when and with whom his
daughter went. Whereas, prosecutrix has
been held to be of 18 years of age in medico
legal examination, wherein, she was written
to be of 18 years by Medical Board of Chief
Medical Officer, Ghaziabad. She, in her
examination, was having with no mark of
injury over her person. Hence, prosecutrix
being of 18 years, was major and she had
gone with preparation by taking cash of Rs.
1 lac and golden and silver jewelry with
her. Hence, this was not an enticing or
kidnapping of any person from India or
from lawful guardianship because the
essential ingredients of kidnapping from
lawful
guardianship,
provided
under
Section 361 of I.P.C., could not be proved.
Hence,
the
conviction
and
sentence
awarded by trial Court for offence
punishable under Section 363 of I.P.C., was
not substantiated with evidence on record,
for which this appeal is to be partly
allowed.

17. Regarding offence punishable
under Section 366 of I.P.C., prosecutrix
being major had gone with convict
3 All. Shareef Vs. State of U.P.
603
appellant with preparation by taking Rs. 1
lac in cash and golden and silver
ornaments with her, as was written in Ex.
Ka-1. Recovery memo, Ex. Ka-2, reveals
that prosecutrix was recovered from Loni
Tiraha and she had never made any
protest or any complaint in between
leaving house and recovery at Loni.
Prosecutrix, in her statement recorded
under Section 164 of Cr.P.C., Ex. Ka-1,
has said herself to be of 15 years and has
admitted that she went with Sharif with
cash of Rs. 1 lac at Agra, where she
resided for two months. But she never
lodged any protest or any report about his
abduction or kidnapping. Hence, offence
punishable under Section 366 of I.P.C.
was also not proved beyond reasonable
doubt. Rather, it was a consensual fleeing
by prosecutrix, who was major and had
left her home with preparation by taking
Rs. 1 lac in cash and golden and silver
ornaments. Hence, the conviction and
sentence
awarded
for
this
offence
punishable under Section 366 of I.P.C.,
was not substantiated by evidence on
record, for which this appeal merits its
allowance.

18. Regarding charge No. 3 i.e.
offence of rape, punishable under Section
376 I.P.C., Section 375 of I.P.C. provides
"A man is said to commit "rape" who,
except in the case hereinafter excepted,
has sexual intercourse with a woman
under circumstances falling under any of
the six following descriptions:--

(Firstly) -- Against her will.

(Secondly)
--Without
her
consent.

(Thirdly) -- With her consent,
when her consent has been obtained by
putting her or any person in whom she is
interested in fear of death or of hurt.

(Fourthly) --With her consent,
when the man knows that he is not her
husband, and that her consent is given
because she believes that he is another
man to whom she is or believes herself to
be lawfully married.

(Fifthly)-- With her consent,
when, at the time of giving such consent,
by reason of unsoundness of mind or
intoxication or the administration by him
personally or through another of any
stupefying or unwholesome substance,
she is unable to understand the nature
and consequences of that to which she
gives consent.

(Sixthly) -- With or without her
consent, when she is under sixteen years
of
age.
Explanation.--Penetration
is
sufficient
to
constitute
the
sexual
intercourse necessary to the offence of
rape.

(Exception)
--Sexual
intercourse by a man with his own wife,
the wife not being under fifteen years of
age, is not rape.

19. Section 376 I.P.C. provides for
punishment of rape that - (1) "Whoever,
except in the cases provided for by subsection (2), commits rape shall be
punished with imprisonment of either
description for a term which shall not be
less than seven years but which may be
for life or for a term which may extend to
ten years and shall also be liable to fine
unless the women raped is his own wife
and is not under twelve years of age, in
which cases, he shall be punished with
imprisonment of either description for a
term which may extend to two years or
with fine or with both: Provided that the
court may, for adequate and special
reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a
term of less than seven years."
604 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Prosecutrix, PW-2, in her
statement recorded under Section 164 of
Cr.P.C., Ex. Ka-1, has categorically said
that she was forcibly subjected to rape.
She has proved her testimony recorded
under Section 164 of Cr.P.C., Ex. Ka-1.
In her cross-examination, there is no
material contradiction, exaggeration or
embellishment on this part of her
testimony. Rather, she has reiterated that
the accused was subjecting her to rape.
Though, a lengthy cross-examination at
various stages has been made by learned
counsel for the defence but rather offence
of rape, there is no material variance.

21. PW-3, Dr. Sumata Talib, in her
testimony has formally proved Ex.Ka-3
(Medico Legal Report). There is no
contest on her testimony.

22. PW-6, Sub-Inspector Rajpal Singh
Tomar, in his testimony, has proved that
while deputed as Investigation Officer of this
case crime number, he got prosecutrix
medically
examined.
Then
after,
her
statement was got recorded under Section
164 of Cr.P.C. Spot map was got prepared.
Formal proof of Ex. Ka-4 and Ex.Ka-5, was
made by this witness.

23. PW-7, Constable-Clerk Rahul
Kumar,
who
has
formally
proved
registration of this case crime number,
chick FIR and G.D. Entry of same,
Ex.Ka-6 and Ex.Ka-7. There is no
variance in his testimony.

24. PW-4, Sarfaraz, is hostile witness,
who has denied that he had ever disclosed the
fact that Sharif had taken prosecutrix and this
was disclosed by him to informant.

25. PW-5, Shakeela, wife of
Sarfaraz, who too, had resiled from this
statement of informant PW-1. These were
the evidence, who given by prosecution
on record. Hence, under all above
evidence, the offence punishable under
Section 376 of I.P.C. was proved beyond
doubt and for which there was conviction
by trial Judge.

26. Moreso, learned counsel for the
appellant has pressed his appeal on the
point of sentence, with request of
imposing sentence of period undergone.
Hence, judgment of conviction is not so
being disputed.

27. Regarding Section 376 I.P.C.,
the minimum sentence provided for
offence of rape is seven years and in case
of punishment, less than seven years,
Court is required to write reasons being
adequate and special reasons to be
mentioned in the judgment for imposing a
sentence of imprisonment for a term less
than seven years.

28. Apex Court in Gopal Singh vs
State Of Uttarakhand (2013) 3 SCC
(Cri) 608 has propounded:-

"Just
punishment
is
the
collective cry of the society. While the
collective cry has to be kept uppermost in
the mind, simultaneously the principle of
proportionality between the crime and
punishment cannot be totally brushed
aside. The principle of just punishment is
the bedrock of sentencing in respect of a
criminal offence. A punishment should not
be disproportionately excessive. The
concept of proportionality allows a
significant discretion to the Judge but the
same has to be guided by certain
principles. In certain cases, the nature of
culpability,
the
antecedents
of
the
accused,
the
factum
of
age,
the
3 All. Mukesh @ Murari Vs. State
605
potentiality of the convict to become a
criminal in future, capability of his
reformation and to lead an acceptable life
in the prevalent milieu, the effect -
propensity to become a social threat or
nuisance, and sometimes lapse of time in
the commission of the crime and his
conduct in the interregnum bearing in
mind the nature of the offence, etc. etc."

29. Though in a case of rape, when an
adult commits rape on a girl of tender age,
deterrent punishment is called for, taking a
lenient view is out of question. Once a
person is convicted for offence of rape, he
should be treated with heavy hands and
undeserved indulgence or liberal attitude in
not awarding adequate sentence is improper.
As per law laid down by Apex Court in
State of U.P. vs. Babu Lal, AIR 2008 SC
582, the adequate and proper sentencing is to
be made.

30. In the present case, convictappellant has been sentenced with ten
years rigorous imprisonment. Prosecutrix,
who was major, was subjected to rape.
Under all above facts and circumstances,
award
of
eight
years
rigorous
imprisonment with fine of Rs. 10,000/-,
and in default two years rigorous
imprisonment will proved to be adequate
sentence.

31. Accordingly, this appeal is to be
partly allowed regarding conviction and
sentence awarded for offence punishable
under Sections 363, 366 and 376 I.P.C.,
hence, the conviction and sentence
awarded by trial Court is being amended
as follows:-

Order

(1) Convict-appellant Sharif is
being convicted for offence punishable
under Section 376 I.P.C. He is being
sentenced with eight years rigorous
imprisonment and fine of Rs. 10,000/-,
and in default two years additional
rigorous
imprisonment
for
offence
punishable under Section 376 I.P.C. His
previous incarceration in this very case
crime number shall be counted towards
this sentence under Section 428 of I.P.C.
He is being acquitted of the charge
leveled for offence punishable under
Sections 363 and 366 of I.P.C.

(2) Copy of the judgment along
with lower Court record be transmitted to
trial Court for amendment of warrant of
conviction and sentence as per above
conviction and sentence and for follow up
action.
----------
(2019)11ILR A605

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 4771 of 2017

Mukesh @ Murari ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Ashok Kumar Yadav (A.C.)

Counsel for the Opposite Party:
Sri Syed Ali Murtaza (A.G.A.)

A.
Evidence
Law-Indian
Evidence
Act,1872 - Circumstantial evidence - last
seen - no eye witness of occurrence - the
circumstances
from
which
the
conclusion of guilt is to be drawn must
or "should be" and not merely "may be"
fully
established
-
The
facts
so